Heeley & Heeley

Case [2023] FedCFamC1F 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1

FIRST INSTANCE

Heeley & Heeley [2023] FedCFamC1F 56

File number(s): BRC 10121 of 2017
Judgment of: CAREW J
Date of judgment: 13 February 2023
Catchwords: FAMILY LAW – PARENTING – Sole parental responsibility to the mother and no time with the father – Where matter proceeded as undefended upon father’s failure to appear – Allegations that the father repeatedly raped mother’s child during relationship and father subsequently charged with rape and indecent treatment of child under 16 – Where father’s acquittal of charges does not ameliorate risk – Where overall evidence supports finding of unacceptable risk of harm  
Legislation:

Evidence Act 1995 (Cth)

Family Law Act1975 (Cth)

Cases cited:

Banks & Banks (2015) FLC 93-637

Baghti & Baghti and Ors [2015] FamCAFC 71

Eastley & Eastley [2022] FedCFamC1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

N and S and the Separate Representative (1996) FLC 92-655

Number of paragraphs: 43
Date of hearing: 13 February 2023
Place: Brisbane
For the Applicant: Did not participate
Counsel for the Respondent: Mr N Batty
Solicitor for the Respondent: Norris Law
Counsel for the Independent Children’s Lawyer Mr A Collins
Solicitor for the Independent Children’s Lawyer Forest Glen Lawyers

EX TEMPORE ORDER

BRC 10121 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HEELEY

Applicant
AND:

MS HEELEY

Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:

CAREW J

DATE OF ORDER:

13 February 2023

THE COURT ORDERS:

1.That all previous parenting Orders be discharged.

2.That the children X born 2010, Y born 2011 and Z born 2013 (“the children”) live with the mother.

3.That the mother have sole parental responsibility for the children.

4.That the father not spend any time or communicate with the children.

NOTATION:

A.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law…

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Details
AGLC
Heeley & Heeley [2023] FedCFamC1F 56
Case
[2023] FedCFamC1F 56
Decision Date

CaseChat Overview and Summary

In the case of Heeley & Heeley, the primary concern revolves around the welfare and safety of the children following the separation of the parents, who are now in a de facto relationship. The dispute centres on the recommendations of the independent children’s lawyer, which advocate for sole parental responsibility to be granted to the mother, with no contact between the children and the father. The mother supports these recommendations but proposes that the father be permitted supervised visits. The father contests these recommendations, arguing that he should be granted sole parental responsibility or, at the very least, equal shared responsibility. The court is tasked with determining the best interests of the children, considering various factors, including the safety and well-being of the children, the parents' capacity to provide for their needs, and the potential for harm in each household.

The court must address several critical legal issues. Firstly, it must assess whether the father poses an unacceptable risk of sexual harm or violence to the children, especially given the history of coercive and controlling behaviour, as well as the serious allegations made against him. Secondly, the court must evaluate whether the mother's mental health affects her parenting capacity and whether her partner, Mr L, poses a risk to the children due to his alcohol abuse. Thirdly, the court must determine whether the mother would comply with any court order allowing the father to spend time with the children if he is not deemed a risk. Additionally, the court must consider whether the father could adequately care for the children's health and other needs if they were to live with him, and whether supervised visits could mitigate any identified risks. Finally, the court must address the practical implications of the parents living far apart and the feasibility of the father spending time with the children under such circumstances.

In its reasoning, the court emphasised the paramount importance of the children's safety and well-being. The court found that the father's history of coercive and controlling behaviour, as well as the serious allegations against him, indicated that he posed an unacceptable risk of harm to the children. The court also considered the mother's mental health and her partner's alcohol abuse, determining that these factors did not significantly impede her capacity to parent. The court found that the mother would likely comply with any court order for the children to spend time with the father if he were not deemed a risk. However, due to the father's history and the serious allegations against him, the court concluded that he posed an unacceptable risk of harm to the children. Consequently, the court ordered that the children live with the mother, that she have sole parental responsibility, and that the father have no contact with the children.

The final orders of the court reflect the findings made during the trial. The children are to live with the mother, who is granted sole parental responsibility. The father is prohibited from having any contact with the children, including communication. The court's decision underscores the importance of protecting the children from any potential harm, ensuring their safety and well-being are prioritised in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

The independent children’s lawyer (“ICL”) recommends a final order be made that the children live with the mother, that she have sole parental responsibility and that the father not spend any time with the children nor communicate with them. The mother adopts the ICL’s recommendation, although the order formally sought by the mother proposes an order that the father be at liberty to spend supervised time upon notice being given to her. BRIEF BACKGROUND The father is 63 years of age and is unemployed. He continues to reside in the former matrimonial home, on a rural property outside of J Town, Queensland. The mother is 42 years of age and employed in healthcare. Shortly after separation, the mother relocated with the children to Melbourne. The parties commenced a relationship in 2007, married in 2008 and separated on a final basis in June 2017. As indicated above, the parties lived on a rural property and the children were home schooled. In 2018 the mother commenced a de facto relationship with Mr L, aged 43. Mr L has one child of a previous relationship, M, aged 12, whom he spends weekend time with each fortnight. Mr L is employed full time. The mother and Mr L have one child together, namely, V, aged four years. The mother has two other children, now adults, Mr F aged 22 and Ms W aged 20. In 2017 a protection order was made against the father for the protection of the mother and children. The protection order arose out of the circumstances of the separation which the mother describes as involving the father attacking her car while she and the children fled. The father had, according to the mother, a history of coercive and controlling behaviour which involved, among other things, his control of who the mother saw and when, and his insistence that the children be home-schooled. Matters escalated when in mid-2017, the father threatened the mother saying – “I could easily shoot you and burn your body with bull-oak. No one would ever find you”. After separation the mother was told by her daughter, Ms W, that the father had touched her inappropriately. In 2018, the father was charged with multiple serious offences involving a child, namely, the mother’s daughter, Ms W. The offences in question were alleged to have occurred in 2017, when Ms W was 14, and while the mother and father were still married and residing together. The mother says she did not know the detail of the father’s conduct until criminal proceedings in 2021. The father was acquitted of all charges in early 2021. When setting this matter down for trial, the following issues were identified as probable issues requiring determination:(1)Does the father pose an unacceptable risk of sexual harm and/or violence to the children? (2)Does the mother pose an unacceptable risk of physical harm to the children?(3)Does the mother’s partner, Mr L, pose an unacceptable risk of harm to the children by reason of his acknowledged alcohol abuse? (4)What impact, if any, does the mother’s mental health have on her parenting capacity? (5)In the event the father is not found to pose an unacceptable risk of harm to the children, will the mother comply with any court order for the children to spend time with the father? (6)Would the father adequately attend to the children’s health and other needs if they were to live with him? (7)If either household poses an unacceptable risk of harm to the children, would supervised time ameliorate the risk? (8)What are the practical implications of the mother and father living so far apart and, in particular, will the father spend time with the children if he is permitted to do so? (9)Do the parents have capacity to make joint decisions about major long term issues affecting the children?

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CAREW J

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Ratio Decidendi

Legal Principle Established

Established by: CAREW J

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